What does it mean to say that Internet access a right? What is a right? And what is a human right?

It can only mean one of two things to say that something is a right. A right is either legal or metaphysical. If it is legal, then there ought to be some kind basis for it in a written statute or in some kind of case law. If it is a metaphysical right, then it ought to have some kind of rational or revelatory basis.

Cothran now replies with a lengthy disquisition on Burke’s philosophy that ultimately refutes Cothran’s point. Cothran – quoted above – treated legally recognized rights and metaphysical rights as utterly distinct, and had mocked the notion that we could evaluate a claim of metaphysical rights by looking at legally recognized rights. And yet the best argument Cothran can now make is that a Burkean conservative recognizes metaphysical rights by examining laws and customs of society: exactly the evidence he previously rejected. Here’s Cothran’s summary of Burke’s methods:

Burke did not deny the natural law; he championed it. What he attacked is the attempted implementation of the natural law based on the articulated rationality so valued by the French Revolutions who, instead of acknowledging reason in is proper place, instead exalted Reason as a goddess. His problem with Robespierre was the conceit that held that men could behold natural law in the abstract: “But I cannot stand forward and give praise or blame to anything which relates to human actions, and human concerns, on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction.”

Abstract natural rights “may and do exist in total independence” of human government, but the only means by which to know them, and the only form in which they can be installed is custom and tradition. This is what he means when he says that “their abstract perfection is their practical defect.”

“Custom and tradition,” in Burke’s case, refers to the constitutions and written and unwritten common laws of England. The sort of thing that now also resides in international treaties and non-binding declarations affirmed by the vast bulk of nations. It is unclear where Cothran locates reason’s “proper place.” He seems to leave it on the shelf, mostly.
Cothran also introduces various distinctions, entirely plausible ones which scholars of Burke’s writings can enjoy mulling over to their hearts’ content, but which don’t actually help him out. Cothran cites a review of Stanlis’s Edmund Burke and the Natural Law, noting in passing the reviewer’s acknowledgement that confusion over Burke’s views on natural rights is rampant and understandable. He quotes the beginning, but not the last sentence, of this paragraph, leaving out the bit which suggests that Stanlis’s views – which Cothran accepts wholeheartedly – may not be the last word on the topic:

It is as a political philosopher that Burke has had enduring influence, and in political philosophy the Burkean paradox may be formulated in terms something like the following: How can a man be an advocate of expediency and an apostle of principle at one and the same time? How can he, for example, excoriate the French Declaration of the Rights of Man as “abstract” and “metaphysical” in almost the same breath that he denounces the French revolutionaries for their crimes against the “eternal immutable law”? Even the most sympathetic interpreters have found themselves confused and exasperated by Burke’s apparent changes of front; some, indeed, out of sheer desperation, have set him down as simply incoherent.

[I]t is misleading to place Burke in the older natural law tradition. In ideas as well as in time, he stands more nearly at a mid-point between that tradition and the positivist approach to law [which Cothran here is arguing against]. Revelation and the interpretive aid of a Universal Church, which were crucial to the traditional concept of natural law, do not play a similar role in Burke’s thought.

Davidson goes on to note that “This emphasis on tradition, which obscures any standard by which the products of tradition can be judged, drains the meaning from ‘natural law,’ however much the term may be invoked.” These traditions, Davidson notes, include “the constitutions of the individual states, their treaties, and their mutual customs and practices.” Again, exactly the sort of evidence I referred to before Cothran forced this down a philosophical/historical jag.

Looking specifically at Burke’s take on international law, Davidson observes:

When Burke appeals to the law of nations against irresponsible or expedient acts, the burden of his argument is always directed to the force of custom among civilized nations and to the obligations of England not to discredit herself in the eyes of her peers by violating this custom. This is the international counterpart, in Burke’s thought, of the obligation of the citizen to observe the prescriptive laws of his nation, and it involves the same difficulties of justification in terms of natural law.

This is the problem Cothran doesn’t want to acknowledge.

That problem aside, the distinctions Cothran introduces (via Stanlis) are coming a bit late: Cothran began by arguing that metaphysical rights must be justified by abstract reason or by subjective revelation, and that laws are not a proper way to argue for metaphysical rights. Now he sides with Stanlis’s (or at least Stanlis’s reviewer’s) reading of Burke, which holds: “It is in man’s historical experience rather than in any abstract metaphysical scheme that we can hope to catch a glimpse of the underlying Natural Law as well as of the modifications it must undergo if it is to become operative in social life.” The more he tries to salvage his claim to Burkean conservatism, the more holes he shoots in his original argument. In rejecting abstract reasoning as a way to find metaphysical rights, Cothran seems to agree to Burke’s strategy of using law as a basis for justifying metaphysical rights, an approach he rejected as absurd when I applied it earlier. The only alternative Cothran offers is “revelation,” but he still gives no basis for evaluating a claim of magical revelation – the same magical revelation Burke steers clear of in his own arguments.

All this being said, I cite Burke here not to defend his views, but to oblige Cothran to contort himself into further knots. As to the inadequacy of Burke’s methods, I refer you to Brad Delong, who skewers Burke (and conservatism) rather nicely:

THERE ARE NO ATTRACTIVE MODERN CONSERVATIVES BECAUSE CONSERVATISM SIMPLY IS NOT ATTRACTIVE. DEAL WITH IT!!

You can see this most clearly if you take a close look at Edmund Burke. Edmund Burke does not believe that Tradition is to be Respected. He believes that good traditions are to be respected. When Edmund Burke in his Reflections on the Revolution in France makes the argument that Britons should respect the organic political tradition of English liberty that has been inherited from the past, he whispers under his breath that the only reason we should respect the Wisdom of the Ancestors is that in this particular case Burke thinks that the Ancestors–not his personal ancestors, note–were wise.

Whenever Burke thought that the inherited political traditions were not wise, the fact that they were the inherited Wisdom of the Ancestors cut no ice with him at all. It was one of the traditions and institutions of Englishmen that they would conquer, torture, and rob wogs whenever and wherever they were strong enough to do so. That tradition cut no ice with Edmund Burke when he was trying to prosecute Warren Hastings. It was one of the traditions and institutions of Englishmen that all power flowed to Westminster. That tradition cut no ice with Burke when he was arguing for conciliation with and a devolution of power to the American colonists. It was one of the traditions and institutions of Englishmen that Ireland was to be plundered and looted for the benefit of upwardly-mobile English peers-to-be. That tradition, too, cut no ice with Burke.

Even in Reflections on the Revolution in France, Burke doesn’t argue that Frenchmen should build on their own political traditions–the traditions of Richelieu and Louis XIV, that is. …

Burke’s argument is not that France in 1789 should have followed its ancestral traditions. Burke’s argument is, instead, that France in 1789 should have dug into its past until it found a moment when institutions were better than in 1788, and drawn upon that usable past in order to buttress the present revolutionary moment. This isn’t an intellectual argument about how to decide what institutions are good. It is a practical-political argument about how to create good institutions and then buttress and secure them by making them facts on the ground.

What are good institutions? Burke sounds like Madison: checks-and-balances, separation of powers, rights of the subject, limitations on the state. Burke’s views on what good institutions are Enlightenment views–that branch of the Enlightenment that took people as they are and politics as a science, that is, rather than the branch that took people as Rousseau hoped they might someday be and politics as the striking of an oppositional pose. Because he finds that the English past is usable as a support for his Enlightenment-driven views, Burke makes conservative arguments in Reflections. But whenever conservative arguments lead where Burke doesn’t want to go–to Richelieu or Louis XIV or the plunder of Ireland or the Star Chamber or Warren Hastings or imperial centralization–Burke doesn’t make them and they have no purchase on him. England’s inheritance of institutions and practices is to be respected wherever it supports Burke’s conception of properly-ordered liberty, and ignored wherever it does not. For Burke, conservatism is a sometimes useful rhetorical weapon, not a set of principles.

And that is how conservatism continues. Not with some principled stand for The Way Things Were, but with an unprincipled demand for things that comfort the comfortable and protect the already-safe, all justified post hoc by insistence that this is “tradition.”

We see this most obviously, of course, in modern debates over marriage equality, where “traditional” marriage is not the polygamy endorsed by the Bible, nor the divorce-free marriage demanded by Jesus, nor the loveless commercially-arranged marriages of the feudal era through the 19th century. It is not even the tradition of early- to mid-20th century America, in which couples of different races could not marry. It is the tradition of marriages that began in the 1970s that conservatives defend, just as they previously defended segregation as tradition, and as they defended the tradition of slavery before that.

Cothran is in a similar bind here. Modern conservatism hates the notion of international law, and especially the United Nations. So he wants to say that UN treaties and declarations are irrelevant. On the other hands, as I showed above, those are the sorts of sources Burke relied on. So he has to decide whether to reject Burkean tradition – a tradition he insists “modern conservatism starts with… and should end with” – or whether to somehow walk back his earlier mocking of references to law and custom as a source of information on human rights. So far, he’s sticking with conservative’s traditional practice, and rejecting the traditional claims of conservatives.

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About TfK

Joshua Rosenau spends his days defending the teaching of evolution at the National Center for Science Education. He is formerly a doctoral candidate at the University of Kansas, in the department of Ecology and Evolutionary Biology. When not battling creationists or modeling species ranges, he writes about developments in progressive politics and the sciences.

The opinions expressed here are his own, do not reflect the official position of NCSE. Indeed, older posts may no longer reflect his own official position.